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SPEECH 



OP 



n HON. THEOPHILUS C. CALLICOT 



OF KINGS, 



AGAINST THE 



PERSONAL LIBERTY BILL. 



IN ASSEMBLY, MARCH 14, 1860. 



ALBANY : 

COMSTOCK & CASSIDY, PRINTEES, 
1860. 



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SPEECH 



IN ASSEMBLY, Febetjabt 3, 1860. 
Introduced on notice by Mr. POWERS — read twice and referred to a select 
committee — reported favorably from said committee, and committed to the com- 
mittee of the whole. 

AN ACT 
To secure freedom to all persons within this State. 

The People of the State of New York, represented in Senate and Assembly, do enact as 
follows : 

Section 1. Every person who shall come or be brought into this State shall be 
free. 

§ 2. Every person who shall hold, or attempt to hold, in this state, any person as 
a slave in anv form, or under any pretence, or for any time, however short, shall be 
deemed guilty of felony, and confined in the state prison, at hard labor, for a term 
not less than two, nor more than ten years, and shall also be liable to the party 
aggrieved for damages in the sum of one thousand dollars. 

§ 3. This act shall take effect immediately. 

In Assembly, March 14, 1860. 

The above bill commonly known as the " personal liberty bill," 
being the special order for this day, and the House having re- 
solved itself into committe of the whole thereon, 

Mr. Callicot said : — I have not deemed it proper to waste the 
time of the committee, Mr. Chairman, by attempting to amend this 
bill, but I now move to strike out the enacting clause. A measure 
so thoroughly and so radically wrong is past all amendment, and 
should be wholly rejected. The fact that similar statutes have 
been enacted in some of the other States in the Union, is no excuse 
for staining the pages of our statute book by such an enactment. 



Let us not forget the Latin proverb, aliena optimum frui insanict, 
that it is best to profit by the madness of others, and let us give 
to the world a new proof of the Horatian maxim — 

Aliena opprobria scepe 
Absierrent vitiis — 

that the disgrace of others deters us from crime. If the fanatics of 
New England and other abolitionized States, have legislated to 
nullify the constitutional act of Congress, let us not follow their 
traitorous example, let us not share in their shame and disgrace, 
but rather let us remember that we are Americans as well as New 
Yorkers — that we are law-abiding citizens of the United States, as 
well as of the State of New York ; let us take an honest and a 
patrotic pride in declaring that our great State yields a loyal and 
cheerful and ready obedience to the federal law, and is faithful to 
the letter and the spirit of the federal constitution. 

Sir, the law-making power of this State, so far a.s it can be con- 
stitutionally exercised in regard to the subject matter of this bill, 
lias already been exhausted. Our law now provides that even- 
person brought into this State as a slave shall be free. If gentle- 
men will take the trouble to look at the Revised Statutes, (Part 
I, chapter xx title 7, section 1 ) they will find these words : — 

"No person held as a slave shall be imported, introduced or 
brought into this State on any pretence whatever. 
Every Buch person shall be tree. Every person held as a slave 
who hath been introduced or brought into this State contrary to 

the laws in force at tlie time shall bo free." 

Prior to the year L841, there were two exceptions to this statute. 
The first exception provided that persons emigrating into this State 
and bringing with them any person lawfully held in slavery in the 
State from whence they emigrated, might retain Buch persons, not 
as slaves, bul as apprentices, until they arrived at of 

twenty-one. The other exception was that any person, not being 
an inhabitant of the State, who should be travelling to or from 
or passing through the State, might bring with him any person 
lawfully held by him in slavery in the Statu from whence be came, 
and mighl take Buch person with him from this State ; but the 
person so held in slavery should not reside or continue in this 



State, more than nine months, and if such residence was continued 
beyond that time such person should be free. 

It was in reference to this last mentioned exception that William 
H. Seward wrote his famous letter to William Jay and Gerrit 
Smith, in October, 1848. when he said : — 

" I am not convinced that it would be either wise, expedient or 
humane to declare to our fellow citizens of the Southern and South- 
western States that if they travel to or from or pass through the 
State of New York, they shall not bring with them the attendants 
whom custom or education or habit may have rendered necessary 
to them. I have not been able to discover any good object to be 
attained by such an act of inhospitality." 

That was, in 1838, the deliberately expressed opinion of the 
same William H. Seward who is now the chief leader of the party 
represented by the majority on this floor. But the Abolitionists 
soon became a political faction of considerable influence in the 
State, and to secure their votes Mr. Seward found it convenient 
to change his opinion, and he and his followers have descended 
from bad to worse until they have finally consolidated themselves 
with the Abolitionists and formed the Black Republican party 
which is based upon the one idea of hospitality to the South. 

Both the exceptions I have referred to were repealed by chapter 
247 of the laws of 1841, and our statute now stands simply and 
precisely as I have quoted. No further legislation then, is needed 
to secure freedom to every person brought into this State as a 
slave, and what we are asked to do by the petitioners for this so- 
called " personal liberty bill " is to enact that every person who 
comes into this State shall be free — that every person who comes 
into this State as a fugitive slave or otherwise shall thereupon 
ipso facto be emancipated and declared free. 

Now, sir, let us look at the Constitution of the United States. 
That sacred instrument which we have all sworn to support, pro- 
vides (art. 4, sec. 2, sub. 3) that — 

" No person held to service or labor in one State, under the laws 
thereof, escaping into another, shall, in consequence of any law or 
regulation therein, be*discharged from such service or labor ; but 
shall be delivered up r on claim of the party to whom such service 
or labor may be due." 



And it further provides (Art. 6, sub. 2,) that — 
'•This Constitution, and the laws of the United States which 
shall be made in pursuance thereof, and all treaties made, or which 
shall be made, under the authority of the United States, shall be 
the supreme law of the land, and the Judge in every State shall 
be bound thereby, anything in the Constitution or in the laws of 
any State to the contrary notwithstanding." 

The articles I have first cited (Art. 4) was in its substance unani- 
mously adopted by the Convention which framed the Constitution 
(Journal of Convention 307,) and its meaning is so clear that it 
would seem to be a work of supererogation to explain it, but since 
the majority of the select committee who reported this bill have 
attempted to argue that by the words " persons held to service 
and labor " the Constitution does not mean slaves, I shall read 
from a few authorities which are unquestionably entitled to 
respect. 

Mr. Justice Story, the most illustrious writer on jurisprudence 
whom our country has produced, says in his learned Commentaries 
on the Constitution of the United States, Vol. Ill, § 1805 :— 

" This clause was introduced into the Constitution solely for 
the benefit of the Blave-holding States to enable them to reclaim 
their fugitive Blaves who should have escaped into other States, 
where slavery was not tolerated. The want of such a provision 
under the Confederation was felt, as a grievous inconvenience, by 
the slave-holding States, since in many States no aid whatsoever 
would bo allowed to the owners and sometimes indeed they met 
with open resistance." 

In Thoma Simn 8 (7 Cushing's Rep. 285,) Chief Justice 

Shaw, delivering the opinion of the Supreme Judicial Court of 
M isachusetts, at the March term, 1851, after reviewing the 
circumstances under which this provision o[' the Constitution was 
adopted, the relation 9 as to each other, and the 

manifest object which the framere Of the Constitution had in 
view, said : — 

" We are to look at the clans.' in question to ascertain its true 

meaning and effect. We think it was intended to guaranty that 
no 81 aid make its own territory an asylum and sanctuary 

for fugitive by any law or regulation by which a si 

who had i waj ed fi s ate where be owed labor or service, 

into such State or territory, should uvoid being reclaimed ; it wua 



designed also to provide a practicable and peaceable mode, by 
which such fugitive, upon the claim of the person to whom such 
labor or service should be due, might be delivered up. * 

'* It could not but have been known, to the framers of the Con- 
stitution, that in the States where slavery was allowed by law, 
certain rights attached to its citizens which were recognized by 
the law of nations, and which could not be taken away without 
their consent. They, therefore, provided for the limited enjoy- 
ment of that right, as it existed before, so as to prevent persons 
owing service under the laws of one State, and escaping there- 
from into another, from being discharged by the laws of the latter, 
and authorized the general government to prescribe means for 
their restoration. * * The regulation of slavery, 

so far as to prohibit States by law from harboring fugitive slaves, 
was an essential element in its formation; and the union intended 
to be established by it was essentially necessary to the peace, 
happiness and highest prosperity of all the States. In this spirit, 
and with these views steadily in prospect, it seems to be the duty 
of all judges and magistrates to expound and apply these pro- 
visions in the Constitution and laws of the United States ; and in 
this spirit it behoves all persons, bound to obey the laws of the 
United States, to consider and regard them." 

In the U. S. Circuit Court for the Seventh Circuit, in the case 
of Gilmer vs. Gorham et al., which was an action to recover the 
value of certain fugitive slaves from Kentucky, who had been 
rescued from the claimant by a force of abolitionists in Michigan, 
Mr. Justice McLean, charging the jury, said : — 

The defendants' counsel, to some extent, have discussed the 
abstract principle of slavery. It is not the province of this Court, 
or of this jury, to deal in abstractions of any kind. With the 
policy of the local laws of the States, we have nothing to do. 
However unjust and impolitic slavery may be, yet the people of 
Kentucky, in their sovereign capacity, have adopted it. And you 
are sworn to decide this case according to law — the law of Ken- 
tucky as to slavery, and the provisions of the Constitution, and 
the act of Congress in regard to the reclamation of fugitives from 
labor. This provision of the Constitution is a guaranty to the 
slave States that no act should be done by the free States to dis- 
charge from service in any other State any one who might escape 
therefrom, but that such fugitive should be delivered up on claim 
being made. This clause was deemed so important that, as a 
matter of history, we know the Constitution could not have been 
adopted without it. As a part of that instrument, it is as binding 
upon Courts and juries as any other part of it. 



8 

In the lucid and elaborate charge delivered to the grand jury, 
at the April term 1S51, of the Circuit Court of the United States 
for the Southern District of New York, Mr. Justice Nelson said : 

" At the time of the adoption of the Constitution by the Con- 
vention, on the 17th of September, 1787, slavery existed, I believe, 
to an extent more or less in each of the States then composing 
the Confederacy. About one-fifteenth of the population of New 
York were slaves ; the proportion in the New England States and 
Pennsylvania was much less ; and in New Jersey about the same 
as in New York. All the original States therefore, were interest- 
ed more or less, in the adoption of this provision into the Con- 
stitution, but more especially the Southern States where, speaking 
generally and without strict accuracy, about half the population 
consisted of this class. It was, however, anticipated that, in the 
progress of time, slavery, while it would increase in the South, 
would diminish and finally become extinguished in the North. 

" So just was this provision regarded at the time by the mem- 
bers of the Convention, and so necessary for the security of this 
species of labor, and the existence of friendly relations between 
the different members of the Union, that it was adopted without 
opposition, and by a unanimous vote. It was of the deepest in- 
terest to the Southern Stales, as, without this provision, every 
non-slaveholding State in the Union would have been at liberty, 
according to the general law of nations, to have declared free all 
runaway slaves coming within its limits, and to have given them 
harbor and protection against the claims of their masters. I 
need not say, at this day, that such a state of things would have 
led inevitably to the bitterest animosities, especially between 
border States, and have been the source of perpetual strife, and 
of the fiercest passions, between the Northern and Southern por- 
tions of the Union. The evil was felt at the time by the Southern 
portion, as the Articles of Confederation contained no such pro- 
vision ; and it was to guard against that evil, and to lay a founda- 
tion that would afford future security, and preserve friendly 

relations and intercourse "I' the States, that the provision was 
incorporated into the fundamental law. No one conversant with 
the history of the Convention, and particularly with the difficul- 
ties that surrounded this subject in almost every Btage of its pro- 
ceedings, can doubt for a moment, thai without this, or some 
equivalent provision, the constitution would never have been 
torme. l. [t was of the la.-t importance to the Southern portion 
of the Qnion, and could cot have been surrendered without 
endangering their whole interest in this species* of property. It 
it not surprising, then-tore, that it is still adhered to with unyield- 
ing resolution, and is made the groundwork of a question upon 



which the continual existence of a Union thus formed is made to 
depend." 

But, sir, there is another and a later authority on this point — 
an authority to which it is probable the majority on this floor 
will bow with greater deference than to our wisest jurists and 
highest tribunals — I mean the Hon. William H. Seward. In his 
elaborate speech delivered before the U. S. Senate on the 29th of 
February of the present year, — a speech of which I observe, 
thousands of copies are being distributed through the post-office 
here by the Republican members of this Assembly at the expense 
of the State Treasury, — he says: — 

" Each State reserved to itself exclusive political power over the 
subject of slavery within its own borders. Nevertheless, it un- 
avoidably presented itself in their consultations on a bond of Fede- 
ral Union. The new government was to be a representative one. 
Slaves were capital in some States, in others capital had no in- 
vestments in labor. Should those slaves be represented as capi- 
tal or as persons, taxed as capital or as persons, or should they 
not be represented or taxed at all ? The fathers disagreed, de- 
bated long, and compromised at last. Each State, they determined, 
shall have two Senators in Congress. Three-fifths of the slaves 
shall be elsewhere represented and be taxed as persons. What 
should be done if the slave should escape into a labor State ? 
Should that State confess him to be a chattel, and restore him as 
such, or might it regard him as a person and harbor and protect 
him as a man 1 They compromised again, and decided that no 
person held to labor or service in one State, by the laws thereof, 
escaping into another, shall, by any law or regulation of that 
State, be discharged from such labor or service, but shall be de- 
livered up on claim to the person to whom such labor or service 
shall be due." 

Even Mr. Seward is obliged to admit this much, and he cannot 
be brought forward to sustain the majority of the select committee 
who reported this bill, in their assertion that the clause of the 
Constitution respecting persons held to service and labor does not 
relate to fugitive slaves. 

The fugitive slave law of 1850, which is now the supreme law of 
the land, is amendatory of and supplementary to the act of Con- 
gress entitled " An Act respecting fugitives from justice and per- 
sons escaping from the service of their masters," approved Febru- 
ary 12th, 1793. That act was a contemporaneous exposition of the 
2 



constitutional provision. It was " a law approved by Washington 
and Adams and enacted by the fathers and founders of the repub- 
lic." It was passed about four years after the adoption of the Con- 
stitution, by a Congress which included some of the most distin- 
guished members of the Convention, and it would be absurd to 
suppose that they did not understand the true meaning and intent 
of the instrument they had framed, better than the wisest and most 
learned of the members of this House. With all due respect to 
the honorable gentleman from Ontario, (Mr. Powell,) the honorable 
gentleman from Chautauqua (Mr. H. Smith,) and the honorable 
gentleman from Washington (Mr. Savage,) who reported favorably 
upon this bill, I cannot prefer their construction of the Constitu- 
tion to that which was placed upon it by the very men who par- 
ticipated in its formation. If I am to be guided by modern lights, 
I choose to follow the judiciary rather than laymen whose know- 
ledge of constitutional law is so questionable. I look to the Courts 
as the best and safest exponents. 

In the 12th of Wendell, page 316, I find that in a case which 
arose in 1834, under the fugitive slave law of 1793, our Supreme 
Court held that — 

" The claim or title of the owner remains as perfect within the 
jurisdiction of the State to which the fugitive has fled, after his 
arrival and during his continuanco, as it was in and under the laws 
of the State from which ho escaped. The service there due and 
the escape being established, so explicit are the terms of the Con- 
stitution, n<> rightful authority can be exercised by tho Stat' 
vary the relation existing between the parties." 

And again, the Court held in tho same case, (Jack vs. Martin,) 
that tho clause of tho Constitution under which the fugitive slavo 
law was passed, is " prohibitory upon tho States, and forbids tho 
enactmenl of any law, or the adoption of any regulation in the 
case of a fugitive slave, by which he may bo discharged from tho 
service of his master : and this prohibition upon the State power 
L8 unqualified and complete.'" In tho more rocont caso of Henry 
v. Lowell, reported in the 10th volume of Barbour, page 208, tho 
Supremo Court, in general term at Oswego, April 1853, Justico 
Gridley, W. F. Allen, Hubbard and Pratt being present, unani- 
mously decided that tho fugitivo slavo law of 1850 was constitu- 



11 

tional. Mr. Justice G-ridley, who delivered the opinion of the 

court, said : — 

" It is insisted by the plaintiffs counsel that the act of Congress 
known as the fugitive slave act is unconstitutional and void j and 
therefore that the defendant cannot justify under it. It is not, 
however, explained in what respect, or on what grounds, the act 
in question is in violation of the Constitution. The former act of 
1793 was adjudged to be in harmony with the Constitution in the 
case of Prigg vs. The Commonwealth of Pennsylvania, (16 Peters, 
239,) by the highest tribunal known to our law, and that decision 
has been re-affirmed in the 5th of Howard's Rep., 215. No impor- 
tant distinction has been pointed out by the counsel between that 
act and the act of 1850, and we do not perceive any bearing on the 
question of constitutionality. In several cases that have occurred, 
the provisions of the present law have been drawn in question, and 
the act has been declared constitutional by Justice Curtis and 
Justice Nelson of the Supreme Court of the United States, by the 
Supreme Court of Massachusetts, and by other eminent Judges 
before whom the question has been raised. This uniform current 
of authority may well excuse us from a discussion of the question 
upon principle." 

These views of the constitutionality of the fugitive slave law 
are in harmony with the older decisions of Chief Justice Parker, 
of Massachusetts, (Commonwealth vs. Griffith, 2 Pick., 11 ;) Chief 
Justice Tilghman, of Pennsylvania, (Wright vs. Deacon, 5 S. & R., 
62,) and Mr. Justice Washington, of the U. S. Supreme Court on 
the circuit, (Hill vs. Low, 4 Wash., C. C, 327.) As Judge McLean 
has well said, in the case of Miller vs. Querry, (5 McLean's Rep., 
469,) " such a weight of authority is not to be shaken. If this 
question is not to be considered authoritatively settled, what part 
of that instrument can ever be settled ?" 

The conflict between this bill and the act of Congress is so 
direct that if it is passed and attempted to be enforced, there 
must be a struggle between the State and Federal authoritie s 
which will result in the most disastrous consequences. The 
fugitive slave law, enacted by Congress in 1850, subjects to fine 
and imprisonment, and also to civil damages to the party ag- 
grieved, any and every person who shall knowingly obstruct, 
hinder or prevent the claimant, or his agent, from arresting the 
fugitive, either with or without process, or who shall rescue or 



12 

attempt to rescue the same from the custody of the claimant or 
his agent, or who shall aid or assist, directly or indirectly, in the 
escape of the fugitive, or who shall harbor or conceal the same, 
so as to prevent the discovery and arrest, after notice that such 
person is a fugitive from service. The bill which we are now 
asked to pass provides that " every person who shall hold, or at- 
tempt to hold, in this State, any person as a slave, or under any 
pretence, or for any time, however short, shall be deemed guilty 
of felony, and confined in the State Prison, at hard labor, for a 
term not less than two, nor more than ten years, and shall also be 
liable to the party aggrieved for damages, in the sum of one 
thousand dollars." So that if this bill i3 passed, there will be a 
State law to punish any claimant who arrests a fugitive within 
this State, while the act of Congress declares that whoever hinders 
the claimant from arresting the fugitive, shall be fined, imprisoned 
mulcted in damages ! 

Even supposing that a State law so obviously in conflict with 
the Federal law, could be enforced effectually, there are reasons of 
expediency which should deter us from its enactment. If we 
make the State of New York a secure place of refuge for fugitive 
slaves, we may expect an influx of colored population, which it is 
our true policy to discourage rather than invite. If under the 
regime of the Republican party, the Constitution is to be so amend- 
ed as to allow all the adult male negroes in the State to vote, 
and all tho slaves who escape from their masters, and take 
refuge here, are to be protected from reclamation, New York will 
become a negro paradise, and our population will be as mongrel 
as that of Mexico or South America. 

But, Sir, I will not trespass upon the time of tho committee by 
urging considerations of expediency. I am willing to rest my 
opposition to the bill on linn, constitutional ground. 

The act of Congress being clearly constitutional, and being the 
Supreme law of the land, tin: majority hero will violate their oaths 
and will be morally guilty of both perjury and treason if they 
pass this " personal liberty bill " to nullify that act. If this bill 
i- placed on OUT statute book, it will threaten with criminal 



13 

punishment all who dare to do their duty in obedience to the 
federal law, it will challenge and provoke a conflict between the 
State and federal authorities which may terminate in bloodshed 
and all the horrors of civil war. It will be a usurpation of power, 
openly defying and setting aside the constitutional authority of 
the federal government, and tending to subvert the supremacy of 
the laws and the integrity of the Union. 

Let me then appeal to gentlemen to pause ere they give their 
votes to such a disgraceful and disastrous measure. Let me en- 
treat them to remember that they are sitting here under the 
sanction of their constitutional oaths, and that they have a higher 
duty to perform than any supposed obligation to a party which 
panders to fanaticism for the purpose of securing the suffrages of 
political abolitionists. Let me hope that there will be enough 
votes to aid the Democracy in defeating this bill from those 
moderate Republicans who feel that their adherance to party is 
of less importance than their regard for the honor and welfare of 
the State, their obedience to the supreme law of the land, their 
fidelity to the constitution, and their duty to the whole Union. 



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